Journalist Jacob Weisberg's New Torture Defense: A Good Offense

Jacob Weisberg, the talented journalist,
editor and opinion leader, floats a very dangerous idea in the new issue of Newsweek.

Weisberg argues that because illegal torture was essentially America's
official policy after 9/11, operating with complicity from the general
public, it would be wrong to enforce US laws against torture now.

This argument basically morphs the infamous Nixon standard
into a referendum--if the public supports something, then it is not illegal.

Does that sound too crazy to be a serious proposal? Here is the core
from Weisberg's column, "Our Tacit Approval of Torture:"

...waterboarding was ordered and served up in secret. But it, too, was
America's policy--not just Dick Cheney's. Congress was informed about
what was happening and raised no objection. The public knew, too. By
2003, if you didn't understand that the United States was inflicting
torture upon those deemed enemy combatants, you weren't paying much
attention. This is part of what makes applying a
criminal-justice model to those most directly responsible such a bad
(emphasis added)

In this lawless paradigm, public awareness of government misconduct is
cited as a justification for placing government officials above
the law. Weisberg rules out the "criminal justice model"--you know,
those laws that govern the rest of us--because some segment of the
public "knew" about government torture in 2003. "Well before the nation
reelected George W. Bush in 2004," the article states, "investigative
reporters had unearthed the salient aspects of his torture policy."

This argument makes no sense. Elections do not cancel our laws. All
kinds of politicians, from the charismatic to the corrupt, can get
reelected after being exposed for crimes or misconduct. Yet public
sentiment should not bully an independent, apolitical Justice Department
from enforcing the laws equally, regardless of the power or popularity
of alleged criminals. The public disclosures about President Bush's
"torture policy," to use Weisberg's taxonomy, simply have no bearing on
the legal question of who knowingly broke the law. Torture is illegal,
as even Bush officials concede, and the Justice Department has a duty to
investigate and prosecute crimes.

Weisberg admits, however, that he actually envisions a Justice
Department cowed by political pressure. In his narrative, corrupted
executive branch decisions masquerade as hard-nose realism: "Pursuing
criminal charges would be too hard politically." That is a reckless
declaration, obviously, but Weisberg is not alone.

If there is one partisan obsession that independent commentators and
die-hard Obama supporters share, it is the crass premise that politics
should trump equal enforcement of the law. Many even admit it openly.

Time columnist Joe Klein
opposes enforcing torture laws "for political reasons, mostly," he recently
wrote, to avoid detracting from Obama's "important domestic and foreign
business." I've heard this same argument from many Obama supporters in
email, blog comments and at political events. (To be fair, though, it is
also countered by apolitical accountability efforts on the Left, from
organizations taking the new administration to court, like ACLU and CCR,
to blogs criticizing Obama's legal muddle, such as FireDogLake, Glenn
Greenwald and

This agenda argument, however, is totally out of bounds. It is offered
by people who have forgotten, perhaps temporarily, that some goals are
simply illegitimate in a democratic society bound by the rule of law.

The Justice Department is never allowed to enforce (or undermine) the
law for "political reasons." That's what the US attorney firings and
the Saturday Night Massacre were about. It is perverse to oppose the
enforcement of war crimes like waterboarding because one happens to
support the policies of the incumbent President. Would Joe Klein
reverse course if prosecutions thwarted the agenda of an administration
he opposed?

Political meddling at the Justice Department, like torture, must be off
the table regardless of utility. Nor should the government weigh
whether national security is advanced by, say, canceling elections.

Our constitution does not allow a shift towards dictatorship or war
crimes, even if it made us "safer."
Yet the current torture debate returns to the surreal contemplation of crimes against humanity
on the basis of their (contested) intelligence value.

"It's almost an out of body experience to me to listen to this debate
going on," said General Barry McCafferey in an MSNBC interview last
month, scolding pundits and policymakers who
openly advocate a criminal torture regime. "We should never, as a
policy, maltreat people under our control--detainees. We tortured
people, unmercifully, we probably murdered dozens of them," he said.
McCaffrey supports an investigation of the government lawyers who
knowingly advocated illegal torture, and he specifically cited Bush's
White House counsel and Attorney General in the same discussion,
emphasizing that "we better find out how we went so wrong."

One reason we went so wrong, as the public record now proves, is that
policymakers and government lawyers gave fraudulent counsel to advance
an illegal torture regime. If the US does not independently
investigate those crimes with all the potential legal consequences on
the table--taking testimony under oath, punishing perjury, disbarring
lawyers (or judges) and prosecuting war crimes--we are more likely to
get it wrong again in the future.

To put it on Obama's preferred terms, we must "look forward" to give the
citizens who live through the next attack, whenever it comes, a clear
guide for how to uphold American values under duress--and a tangible
disincentive against returning to torture. As it stands, the current
precedent leans heavily towards lawless immunity, not accountability.
And no, it's not your fault.

UPDATE: I discuss these issues more in this new post, Congressman Warns Obama White House on Abusing Power.

Ari Melber writes for The Nation, where this column ran. He Twitters politics here.

Video of Gen. McCaffrey: